Ever found yourself or someone in a situation where you have to be in a negative action to ultimately save something/someone? Well, it is legal to cross the line, but only sometimes and only in a certain room.
The right to private defence of person and
property is recognized in all free civilized democratic societies within
certain reasonable limits. In
the words of Bentham, "The Right of Private Defence is absolutely
necessary for the protection of one’s life, liberty and property."
It is the primary duty of State to protect
life and property of its citizens. But the fact is that State cannot watch
each and every activity of the citizens. There may be situations in which State
cannot help a person immediately when his life or property is in danger.
In view of this, Indian Penal Code, 1860 u/s 96 to 106 has given the right of
private defence of body and property of every individual.
These provisions give the authority to person to exercise necessary force against wrong doer for the purpose of protecting one’s own body and property and also for another’s body and property when immediate aid from state machinery is not available.
The law of private defence is of two types:
1.
Right of
private defence of body, (Section 100, 101, 102, 106 of the
Act)
2.
Right of
private defence of property, (Section 103, 104, 105 of the Act)
Section
97, 98, 99 of the Act
is of general nature i.e. deals with body and property.
And these rights of private defence are based
on two principles:
a.
Right to
defend his own body and property, also of another’s body and property.
b.
The right cannot be applied as a pretense for
justifying aggression for causing harm to another person nor for causing more harm than it is necessary
to inflict for purpose of defence.
It is to be duly noted that an aggressor i.e.
the person invoking or instigating the other person to cause the harm at first
place, can not claim the right of self-defence.
In
Jagdish
v State of Rajasthan AIR 1979 SC 1010, Supreme Court evolved set of
principles to be observed when self-defence is to be raised:
1. It
is only available when circumstances clearly justify them.
2. The
defence must be reasonable worth satisfying the court that the harm caused by
accused was necessary.
3. Person
legitimately acted in exercise of right to private defence is a question of
fact to be determined on facts and circumstances of each case.
4. U/s
105 of The Evidence Act, 1872, the burden of proof is on the accused i.e. who
sets up the plea of self-defence.
Ø Section 96 provides that nothing is an offence which is done in the exercise of the right of private defence. However, this right isn’t absolute but subjected to some restrictions provided under Section 99 of the Act.
Ø Section 97 Every man has right to right to defend body of his own and of another person against any offence affecting human body and, property of his own and of other person whether movable, or immovable against theft, robbery, mischief or criminal trespass or attempt to commit any of such offences.
Ø Section 98
this section provides the right of private defence extends even against an
offence committed:
i.
By person of unsound mind (Section 84)
or,
ii.
By child (Section 82,83) or,
iii.
By mistake of fact or by law (Section 76,
79).
Ø Section 99 are the exceptions where right of private defence cannot be exercised:
1. Where
there is sufficient time for recourse to public authorities.
2. Against the acts of public servant acting in
good faith. (If the act of public servant
is ultra-vires, the right of private defence can be exercised against him.)
3.
Against acts of those acting under their
authority or direction. (There will be no
right of private defence against those acts of public servant or those under
the direction of authority of public servant which do not reasonably cause apprehension
of death or grievous hurt.)
4. The quantum of harm that may be caused shall
in no case be in excess of harm may be necessary for purpose of defence. The
harm caused must be proportionate to the injury. In no case it should extends
to inflicting of more harm than its necessary in particular case.
Ø Section 100 justifies the killing or of causing any other to the assailant maintaining restrictions mentioned in prior section of 99: an assault:
i.
Causing the apprehension of death,
ii.
Causing apprehension of grievous hurt,
iii.
With intention of committing rape,
iv.
With the intention of gratifying
unnatural lust,
v.
With intention of kidnapping or abducting,
vi.
With intention of wrongfully confining a
person under such circumstances which may give him apprehension that he will be
unable to connect with public authority for his redress,
vii. Throwing or administering acid causing reasonable apprehension that it will result in grievous hurt.
Ø Section 101 provides that if the offence which entitles a man to exercise the right of private defence is of no such serious description as specified in clauses 1 to 6 to Section 100 the right of private defence does not extend to voluntary causing of death but does extend to cause any other harm other than death subject to restrictions imposed by section 99 of the Act.
Ø Section 102 the right of private defence of body commences as soon as reasonable apprehension of danger to the body arises and the right continues so long as such apprehension of danger to body continues. The threat however must be immediate or imminent and not remote or distant danger.
In Jaidev v. State of Punjab, AIR 1963 SC 340, the Supreme Court held that the right of private defence against an assault causing apprehension of death or grievous hurt comes to an end as soon as that of assault has ceased and apprehension of danger has been entirely moved.
Ø Section 106
deals with a case of extreme necessity where an apprehension of death exists
and person is so situated that he cannot
effectively exercise the right of private defence without possibility of doing
harm to an innocent person as of while saving life of an individual in a mob.
It is rightly said by Russell in law of crimes that “this
right is essentially of defence not of retribution.”
����bahut badiya
ReplyDeleteThanks alot
DeleteGreat piece!
ReplyDeleteMeans alot. Thankyou
Delete